YOHANA LUPEMBE EDITED 222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL CASE NO. 19438 OF 2024 (Arising from Criminal Case No. 75 of 2023in the District Court of Kiteto at Kibaya) YOHANA LUPEMBE................................................................. APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT JUDGMENT 9^ October & 12C November, 2024 Kahyoza, J.: Yohana Lupembe was arraigned before Kiteto district court charged with the offence rape of a girl aged thirteen years old. The trial court convicted him and sentenced him to 30 years' imprisonment. Dissatisfied, Yohana Lupembe appealed to this Court, raising six grounds of appeal, which culminated into the following issues- 1. Whether the evidence was weak to ground conviction on account of being contradictory and inconsistence; 2. Whether it was proper to rely on the evidence of victim to convict the appellant; 3. Whether the appellant was properly identified; 4. Whether the chain of custody was established; 5. Whether the trial court was proper to rely on uncorroborated caution statement; and 6. Whether the sentence was justifiable. A brief background based on prosecution's evidence is that; Yohana Lupembe (the appellant) did on 27th September, 2023 have sexual intercourse with the victim at Twanga area within Namelock village. The prosecution alleged that the victim was a class five primary school pupil aged 13 years old. Japhet Lusato (Pw4), the victim's teacher confirmed the victim was a class five pupil at Twanga primary school and that her registration number was 20181740791. Japhet Lusato (Pw4), tender an extract from the PREM system register showing that the victim was born on 1.7.2010, thus, she was 13 years old. The victim after promising to tell truth narrated that on the 26.9.2023 while driving donkey which carried water at 07:00pm met the appellant who was driving donkey too. The appellant trailed her and pulled her to the bush. He held her down and threatened to kill her if she screamed. He laid on top of her, took his manhood and inserted it in her private parts. He had sexual 2 intercourse with her. She felt pains and bled. She reported to her mother (Pw5) on the same day. The victim's mother deposed that the victim told her that she was sick and went to bed. She did not take her usual share of food. The following day the victim's mother went to the victim's room and found her laying on bed and her bed sheet covered with blood. She asked her what had happened. The victim told her mother (Pw5) that the appellant raped her. She reported the matter the appellant's father who brushed the allegation off. Later, the victim's brother gave them money to take the victim to hospital. Latipha Rajab Kiduli, (Pw3) the doctor examined the victim on 27.9.2023 and confirmed that she was penetrated. She saw blood oozing from the victim's vagina, her labia minora and labia majora were torn. She checked and found that she had lost her virginity. She tendered a PF3 as Exh. P2. The investigator W10410 CpI Prisca (Pw4) deposed how she received the victim and her mother who carried with them a masai sheet which had blood. She seized the sheet and issued them with a PF 3 went with the victim to hospital for examination and treatment. She tendered a certificate of 3 seizure, a chain of custody form, and the masai sheet as exh. PE. 3, exh. PE4 and exhi. PE5, respectively. On 29.9.2023 the appellant was arrested and taken to police where he admitted to have had sexual intercourse with the victim. G. 2260 CpI Moshi (Pw6) recorded the appellant's caution statement, which he tendered as Exh.PE. The appellant denied to commit the offence and raised the defence of alibi. He deposed that he nowhere near the scene of the crime as in October 2023 he left the village going for mgambo training. He came back from training on the day he was arrested. He deposed that he reached home at 05:00pm, took food and put on the masai attired and went to the road to drive herds of cattle home. At around 06:00pm his mother called him home. He went to meet his mother who told him to go to the village executive officer (VEO) who was at the hamlet chairperson's place. The appellant summoned Baraka Maingwaa (Dw2) who deposed that they went for mgambo training and returned home. On the day they returned home, after putting on the masai outfit went to graze herds of cattle in the evening. They drove the cows home and when they reached at the 4 road the appellant got information that he was need at home. He responded to the call leaving the cows with Baraka Maingwaa (Dw2) and Emmanuel. It is against the above background the trial court convicted the appellant. During the hearing of the appeal, the appellant fended for himself while Ms. Anipha appeared for the Respondent. I now reply to the issues raised by the grounds of appeal. The appellant had nothing to add to his ground of appeal. This is a first appeal tasked with a duty to re-evaluate the evidence, among other things. The basic is issue is whether the prosecution did prove the appellant guilty. The appellant was charged with the offence of rape, c/s sections 130(1), (2)(e) and 131(1) of the Penal Code, [Cap. 16 R.E 2022], which is commonly referred to as statutory rape. It is settled law that when a person is charged with statutory rape, the prosecution is not required to prove that the accused had carnal knowledge of the victim without consent. Thus, to establish the offence of statutory rape, it is immaterial whether the victim consented, but the prosecution must prove and do so beyond doubt that the victim was below 18 years of age, she was penetrated and that it was the appellant who penetrated the victim. Was the victim penetrated? 5 The appellant denied to have sexual intercourse with the victim and deposed that he was nowhere near the crime scene. Ms. Anipha, the learned respondent's state attorney submitted to the first, third and second grounds of appeal jointly that, the prosecution proved the appellant guilty beyond reasonable doubt. She contended the victim told the court that she met the appellant who pulled her to the bush, threatened her and penetrated her. She bled and felt pains. She added that Latipha Rajab Kiduli, (Pw3), the doctor corroborated the victim's evidence and also tendered the PF.3 as exhibit. It is true the victim gave an account of the event on how the appellant penetrated her. The appellant and the victim were villagemates. They knew each other before the event. The offence was committed at around 07:00pm when the victim was driving the donkeys carrying water home. As submitted by the state attorney, Latipha Rajab Kiduli, (Pw3), the doctor corroborated the victim's evidence. I considered the victim's evidence and the doctor I had no reason to doubt their credence. It is settled that the victim's evidence must not be taken as biblical truth, it ought to be analyzed and considered if it is credible. It is also trite law that in sexual offence cases, the best evidence is that of the victim 6 who is found to be truthful by the courts. See Selemani Makumba v. R., [2006] TLR 379 and Vincent Ingi v. Republic, Criminal Appeal No. 527 of 2015 (unreported). The victim testified after she promised to tell truth as the record depicts. Even if the promise was not properly recorded or the victim did not promise at all, it was not a fatal irregularity. The Court of Appeal has made it express that the omission to promise to tell truth or failure to record the promise is curable in George Jonas Resilwa v. R. 374/2020 tanzli [2024] TZCA 269. In that case the Court of Appeal held that failure to comply with section 127(2) of the Evidence Act was not fatal. It observed that- 'Tn other words, an appellate court should look at the substance of the complaint raised by the appellant and see whether the alleged non-compliance with section 127 (2) of the Evidence Act was of such a nature as to be said, in rational terms, to have produced a substantial defect upon such evidence. The above observation, no doubt is the reason behind the recent introduction of section 127 (7) of the Evidence Act as amended by the Legal Sector Laws (Miscellaneous Amendment) Act No. 11 of 2023, which we find it imperative to reproduce, thus: "Notwithstanding any other law to the contrary, failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of such child in-admissible". 7 The victim's evidence was properly recorded and that she told no lies. She had no reason to tell lies which her mother, the doctor supported. There is evidence that she bled and felt pains. The only weakness is that the victim and her mother gave contradicting evidence as to the time the victim reported to her mother. The victim deposed that she reported to her mother immediately after arriving home where the victim's mother deposed that after the victim arrived home she told her that she was sick and proceeded to her bedroom. She ate little amount of food. At round 02:00am, the victim's mother went to the victim's room to check she had improved. She found the bedsheet full of blood and the victim was in pain. She asked her what had befallen her. It was at that time the victim narrated what had happened. I discern two things from the victim and her mother's evidence; one, the victim did not report immediately to her mother that the appellant raped her. I do not buy the respondent's submission that the victim reported immediately that she was raped; and two, the two witnesses gave contradictory evidence. I consider the victim's delay to report and its consequences. It is trite law as submitted by the learned state attorney that, "the ability to name the suspect at the earliest opportunity is an important assurance of his liability". To anchor her argument, she cited the case of Elia 8 s/o Richard Shoo vs Republic (Criminal Appeal No. 196 of 2021) [2024] TZCA 422 (10 June 2024) where the Court of Appeal observed that- "It is true that the credibility of the witness in issue should be called into question due to the unexplained delay in naming a suspect - see Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39. Nevertheless, as we previously stated in Selemani Hassani v. Republic, Criminal Appeal No. 203 of2021 [2022] TZCA 127 [22nd March, 2022; Tanz LII], this principle must not be applied reflexively without considering the specific circumstances of the case. In that event, we observed the following: "We think that while it can apply fairly unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity of the victim, death threats or shame- associated with such offences may dissuade the victim from reporting the matter with promptitude. The Court of Appeal in Elia s/o Richard Shoo vs Republic (supra) observed further that when delay to name or report a suspect of rape occurs the rule in Marwa Wangiti Mwita & Another v. Republic should be applied reflexively taking into consideration the circumstances of the case. It cited and quote with approval the decision of the Supreme court of the Philippines in People of the Philippines v. SP01 Arnulfo A. Aure and SP01 Marlon H. Ferol, G.R. No. 180451, October 17, 2008 that- 9 "Delay in reporting an incident of rape due to death threats and shame does not affect the credibility of the complainant nor undermine her charge of rape. The silence of a rape victim or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is baseless and fabricated. It is a fact that the victim would rather privately bear the ignominy and pain of such an experience than reveal her shame to the world or risk the rapist's making good on his threat to hurt or kill her." In the present case, the victim was 13 years old and it seem it was her first time to engage into such an act that is why she bled and felt pains. Not only that she fell sick and did not take the share of food as usual. The victim's mother was suspicious that she was serious ill that is why she had to keep a close her at her. She woke up at night to check her. The victim also deposed that the appellant had threatened to kill her. In the circumstance, I hesitate to hold that she delayed to report because she did not identify the victim or her evidence was not credible. I find her a credible witness despite her delay to report and name the appellant when she met her mother. As to the contradiction as to the time of reporting the incidence between the victim and the victim's mother. I am of the firm view that the contradiction was not fundamental. The basic issue was whether the 10 appellant penetrated the victim and it is not regarding the time of reporting the incident. The Court of Appeal held in Zheng Zhichao V. D. P. P. Cr. Appeal No. 506/2019 where the Court of Appeal held that- "a material contradiction or discrepancy is that which is not normal not explained of a normal person, and that courts have to determine the category to which a contradiction, discrepancy or inconsistency could be characterized". I find that the victim was penetrated. Thus, the prosecution established that the victim was penetrated beyond reasonable doubt. Was it proved that the victim was below 18 years old? The trial court found it proved that the prosecution proved that the victim was below 18 years old by the evidence of Japhet Lusato (Pw4), the victim's teacher. I have no reason to fault her. Japhet Lusato (Pw4), the victim's teacher tendered an extract from the primary school registration system showing that she was born in 2010. That evidence was enough to prove that the victim was below 18 years old. Even if that evidence was sufficient to establish the victim's age, that fact that the victim was a standard V pupil at Twanga Primary School proved that she was below 18 years old. The Court of Appeal in Elia s/o Richard Shoo vs Republic 11 (supra) held that the age of the victim could be inferred from the fact that she was a standard IV pupil. It stated that- "Nevertheless, we concur with the learned State Attorney's assertion that PWi's age can be inferred from the fact that she was a Standard IVpupil at Move Primary School at the relevant time, in accordance with section 122 of the Evidence Act, as elucidated in Issa ya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218 [26th April, 2016; TanzLII]" I find that the prosecution proved that the victim was below 18 years old. The last issue to consider is whether the victim did identify the appellant. Was the appellant properly identified? The victim deposed that she met the appellant driving donkeys and she was also driving donkeys carrying water home. It was at 07:00pm. She did not testify as to the state of light at that time. The victim and the appellant knew each other as they were villagemates. The appellant raised defence of alibi. He summoned (Dw2) to support him that he was not near the scene of crime on the material date. I alive of the fact that the appellant raised the defence of alibi in his defence without following the procedure under section 194(4) of the Criminal Procedure Act, [Cap. 20 R.E.2022]. The law required the appellant to give a 12 notice that he will raise the defence of alibi. All in all, I will consider whether it raises doubts in the prosecution's evidence. The appellant deposed that in October they went for Mgambo training and returned on the day he was arrested. (Dw2) did not deposed as to when they went for training and when they came back. (Dw2)'s evidence did not advance the appellant's case any further. The above notwithstanding, the appellant and the victim knew each other before the incident, thus, with the slightest light it was possible to recognize each other. If, the appellant and the victim were driving donkey, it is a proof that it was not too dark not to identify each other. I am of the view that the victim did properly recognize the appellant. I find the first, second, and third grounds of appeal without merit. Was chain of custody established? The prosecution tendered the chain of custody form regarding the bedsheet. To say the least, the evidence that the victim's bedsheet had blood was a weak evidence to prove that it was the victim's blood. The bed sheet may have somebody's blood whether chain of custody was not established, I do not find it strong a point to rely upon. 13 The appellant complained that the caution statement was not corroborated. As the record bears testimony, the appellant did not repudiate or re-tract the statement, thus, there was no die need to have the evidence to corroborated the caution statement. Even if that evidence was required the fact that the victim testified that the appellant raped her that evidence was sufficient to corroborate the appellant's caution statement. I find no merit in the complaint. It is settled that the best evidence in sexual offence comes from the victim. The Court of Appeal of Tanzania in the case of Akwino Malata Vs. R., Cr. Appeal No, 438/2019. (CAT-Unreported), warned that the court before relying on the evidence of the victim to convict it must be satisfied that the victim is telling nothing but truth. It stated- ”T/7/s is a principle of law to the effect that the evidence of sexual offence has to come from the victim and if the court is satisfied that the victim is telling the truth it can convict without requiring any corroborative evidence." The trial court had reason to convict the appellant without any more evidence provided it formed an opinion that the victim told nothing but the truth. 14 Was the sentence justifiable? The appellant complained against the sentence imposed. The appellant was convicted with the offence of rape under 130(1), (2)(e) of the Penal Code and convicted to 30 years' imprisonment. The sentence for the offence of rape is under section 131(1) of the Penal Code, which reads that- "131. -(1) Any person who commits rape is, except in the cases provided for in the renumbered subsection (2), liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, and with a fine, and shall in addition be ordered to pay compensation of an amount determined by the court, to the person in respect of whom the offence was committed for the injuries caused to such person". It is on record that the appellant was 19 years at the time he committed the offence. The trial court's hands were tired. It could only impose the minimum sentence which was 30 years' imprisonment. It had no discretion to impose a sentence lesser than that. I find the appellant's complaint baseless. The sentence was a just sentence as per the law. In the end, I find that the prosecution proved the elements of the offence of statutory rape, which are the victim's age and penetration. Consequently, I find the appeal without merit and dismiss it in its entirety. I 15 uphold both, the conviction and sentence of 30 years' imprisonment imposed by the trial court. I also uphold the compensation of Tzs 1,000,000/= imposed by the trial court. Dated at Babati, this 13th day of November, 2024. John R. Kahyoza Judge Court: Judgment delivered in the presence of the appellant and Ms. Blandina, learned State Attorney, for the Respondent. B/C Mr. Shadrack present. The right of further appeal explained. J.R. Kahyoza JUDGE 13/11/2023 16